Friday, December 22, 2006

You Talking To Me? ...Can You Hear Me Now?

What’s wrong with this picture?

Nothing today for this city employee talking on his cellular phone while driving. However, City Councillors Isaac Benton and Ken Sanchez have introduced a piece of legislation changing the city traffic code; § 8-2-1-24 Driver’s Prohibited Acts.

“It shall be unlawful for any person to: Drive a vehicle while talking on or otherwise operating a hand-held cellular phone. Calling 911 while driving a vehicle in order to report the need for roadside assistance, an emergency or a crime being committed shall be exempt from this provision.”

Using a hand free microphone and earpiece would be acceptable, Benton said, on KOB-TV’s Sunday morning talk show, “Eye on New Mexico,” hosted by Dennis Domrzalski and Nicole Brady on Dec. 17. However, that is not what the section reads. The words, “or otherwise operating a hand-held cellular phone,” do not establish that exception. Because there is one listed exemption, to call 911 about a roadside emergency or crime, then any other exemptions also need to be listed.

Domrzalski invited me to appear on the program; but cellular phone use while driving is not my issue. Attorney Paul Livingston had the red light and speed cameras covered the week before. The issue of due process, for red light and speed traffic offenses caught on cameras, are my issue. Livingston is pursuing several cases in state district court challenging the entire Safe Traffic Operations Program or the City’s STOP ordinance.

So what’s wrong with this picture?

A cellular phone is a radio that functions like a telephone. A police radio, unlike a cellular phone, requires an officer to physically push a transmit button to open the microphone.

Police officers, while on routine patrol, are required to do a number of things simultaneously, while operating their police vehicles.

On occasion, officers are involved in high-speed pursuits. One of the most critical things an officer has to do during these hazardous pursuits is to stay in constant communications, broadcasting location, direction and speed so other officers may intercept and apprehend the offending driver. Consider an officer virtually talking on a cellular phone at a hundred mph while running red lights and weaving through traffic.

No exemption is in this ordinance for cops, taxi drivers or any number of people who rely on radio dispatching.

Benton and Sanchez are considering withdrawing the section as a traffic offense and applying the newly favored nuisance abatement theory, citing that the courts are overloaded.

The City’s nuisance abatement theory for greater enforcement is not to increase the number of Metropolitan Court judges, but to bypass the entire legal judicial process altogether.

Domrzalski and Brady challenged Benton and Sanchez on the due process question of using a City administrative hearing officer rather than the Metropolitan Court and Benton responded that an offender could give his excuse to the officer who stopped them and the officer had the discretion to handle the matter on the street by not issuing a citation. The councillors clearly have no understanding of the concept of independent judges assuring due process in this country.

Benton and Sanchez are also trying to determine the penalty. Sanchez favors a $50 fine while Benton thinks $100 is appropriate.

There maybe no need for this provision, as there is plenty of good law already on the books. Take for instance, § 8-2-1-13 Careless Driving.

(A) Any person operating a vehicle on the roadway shall give his full and entire attention to the operation of the vehicle.

(B) Any person who operates a vehicle in a careless, inattentive or imprudent manner, without due regard for conditions of traffic, weather, and roadway, grade, corners, width of roadway, and all other attendant circumstances, so as to endanger life, limb, or property of any person, shall be guilty of careless driving….

When I was president of the police officers’ association, 20 years ago, computer aided dispatching was just coming into use.

Voice communications takes up a lot of time and repetition of messages eat up precious moments. The small screen would display text and it reduced radio use. That allowed for more time for voice communications, especially for emergencies.

I was concerned with the fact that officers would hear the message alert and then look down at the screen to read the text, even while driving.

I could perceive the possibility of accidents because of the distraction caused by viewing the computer screen.

There was, and still is a traffic code section: § 8-6-18 Restriction on use of Television.

“It shall be unlawful to operate any motor vehicle equipped with a television screen of any type upon which images may be projected or shown, if such screen is within the normal view of the operator of the vehicle.”

I asked the assistant city attorney, assigned to the department at the time, what the city’s position would be if an officer, distracted by the computer, were to be involved in an accident?

The city attorney’s office produced a letter that shocked me, and I don’t shock easily. It said that the computer screen was not, as the traffic code defined, a “television screen of any type upon which images may be projected or shown, if such screen is within the normal view of the operator of the vehicle.”

Thereby, an officer would not be liable, should he or she kill or seriously injure someone in such an accident.

I am not aware of any serious accidents involving officers being distracted by their computers, though I’ve followed one or two who have weaved down the road having their head directed at the screen.

Today’s technology has gone way beyond where it was two decades ago. There are Global Positioning Satellite devices, DVD players and radios to name a few. Cellular phones are just another. Statistically, the leading distracter identified in causing accidents is the driver’s leaning and reaching for something.

Let’s not forget eating, drinking, talking, arguing, singing along with the music, using electric shavers and applying make-up as things, we as drivers have all witnessed and maybe even engaged in, that we know have caused distractions.

OK, for those who can’t handle cop humor, turn away now!

The old line among cops about driver inattention was; do you know why women put on their mascara at traffic lights? They don’t have any balls to scratch.

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About Me

I am a retired law enforcement officer who has a life long interest in photography and journalism. I focus mainly on issues of local politics, though I will step off into state, national and international issues. I have a history of watching government closely with a particular eye on process. I look carefully for the unusual, quirky and any exceptions that are granted which cause unfair treatment amongst citizens or businesses. I view governmental activity first through a constitutional lens. Then I assess adherence to process, the rule of law and the rules that govern them. I look for and attempt to expose hypocrisies and inconsistencies. I also look for laws that do not forward the ideals of human rights. I will rail at bad, unenforceable, unconstitutional laws and those who create and attempt to enforce them.
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